E. L. Witt & Sons v. Stith

• Decision Date: 22 October 1924
• Docket Number: (No. 6775.)
• Parties: E. L. WITT & SONS et al. v. STITH.
• Court: Texas Court of Appeals

265 S.W. 1076

E. L. WITT & SONS et al. v. STITH.

(No. 6775.)

Court of Civil Appeals of Texas. Austin.

October 22, 1924.

Error from Burnet County Court; O. B. Zimmerman, Judge.

Action by Knight Stith against E. L. Witt & Sons and others. To review order overruling plea of privilege and default judgment, defendants bring error. Reversed and remanded.

Old & Smith, of Uvalde, for plaintiffs in error.

Knight Stith, of Llano, pro se.

BLAIR, J.

This is an appeal from an order overruling a plea of privilege as well as from a default judgment upon the merits of the case. It is the second appeal to this court on the question of plea of privilege; the first appeal being reported in the case of Witt & Sons v. Stith (Tex. Civ. App.) 212 S. W. 673. In this case this court reversed and remanded the cause because the mandatory provision of article 1903, Vernon's Sayles' Civil Statutes Supp. of Texas, 1918, as to filing a controverting affidavit to the plea of privilege, was not complied with. In reversing the case this court instructed the trial court to give the defendant in error an opportunity to file a controverting plea or affidavit as required by said article of the statute, if he so desired; if not, to transfer the case in accordance with the plea of privilege.

After the mandate had been received by the trial court, it granted defendant in error the privilege of filing what was designated "plaintiff's second amended original petition and first amended controverting affidavit," which was filed on May 11, 1922. This instrument stated that it took the place of all former pleadings in the case as well as all controverting affidavits to the plea of privilege theretofore filed; and also asked that defendant in error be permitted to file his amended pleadings and his amended controverting answer in the same instrument, assigning as a reason therefor that the facts relied upon for recovery of damages as well as for jurisdiction were the same, and that the filing of separate papers covering identical matters would add costs and a large accumulation of papers. This instrument was sworn to as follows:

"On this 11th day of May, 1922, personally appeared before me the undersigned authority, Knight Stith, who, being by me duly sworn, says that the facts stated in the above petition where stated on his own knowledge are true, and where stated on information he believes to be true.

"Sworn to before me on this the date above written. W. E. McLean, County Clerk, Burnet County, Texas. [Seal.]"

A copy of this second amended petition and controverting affidavit as above sworn to was duly served upon plaintiffs in error along in the summer of 1922. The county judge did not indorse thereon the date for a hearing on the plea of privilege. On May 10, 1923, the date the case was set for trial on both the plea of privilege and on its merits, the defendant in error swore as follows to his second amended original petition and first amended controverting affidavit:

"On this the 10th day of May, 1923, personally appeared before me the undersigned authority, Knight Stith, who, being by me duly sworn, says the facts stated in the above petition are true as therein stated.

                                           "Knight Stith
                

"Sworn to before me on this the day above written. H. F Atkinson, County Clerk, Burnet County, Texas. [Seal.]"

After the instrument was thus sworn to, no service of it was had upon plaintiffs in error; nor is it shown that they had any notice of the setting of the case on May 10, 1923, on the plea of privilege; nor did the judge indorse thereon his setting of the plea of privilege. Plaintiffs in error did not appear on said date, and the court heard and overruled the plea of privilege, and rendered judgment by default for the defendant in error for the sum prayed for in his last filed pleadings; no other answer than the plea of privilege having been filed by plaintiffs in error. So soon as plaintiffs in error learned of the above judgment they applied to this court for a writ of error, and they are here now asking us to determine if the trial court obtained jurisdiction by reason of the proceedings above stated, in view of their plea of privilege, contending: First, that there had never been any controverting affidavit filed in answer to the plea of privilege; second, that the controverting affidavit was never served upon plaintiffs in error as required by the statute; nor was any notice of the hearing upon said plea of privilege given them; nor had the county judge indorsed thereon his flat, setting the case down for a hearing upon the plea of privilege; third, that the evidence adduced was insufficient to support the controverting affidavit; and, fourth, that the instrument designated "plaintiff's second amended original petition and first amended controverting affidavit" was insufficient as a matter of law, because it was vague and did not state any legal reason why the plea should not be sustained.

We are of the opinion that plaintiffs in error's second contention must be sustained. The portion of article 1903, supra, in so far as it is here involved, reads:

"If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing thereon shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten full days exclusive of the day of service and day of hearing."

Our courts have universally construed the meaning of this statute to be that upon the filing of a plea of privilege in the manner and form required by the statute it is then incumbent upon the plaintiff to file a controverting affidavit and introduce evidence showing the right to sue in the county where such suit is pending. Clarke v. Taylor (Tex. Civ. App.) 223 S. W. 878; Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 370; Shear v. Neely (Tex. Civ. App.) 214 S. W. 573; Chamberlain v. Fox (Tex. Civ. App.) 54 S. W. 297; Lee v. Gilchrist (Tex. Civ. App) 215 S. W. 977, First Nat. Bank v. Gates (Tex. Civ. App.) 213 S. W. 720, Ray v. Kimball (Tex. Civ App.) 207 S. W. 351.

The only controverting affidavit served upon plaintiffs in error, in so far as the record discloses on this appeal, was that designated "plaintiff's second amended original petition and first amended controverting affidavit," as the same was sworn to on May 11, 1922; the oath being in the language above quoted. An affidavit to become such in fact must be properly sworn to, since the oath or affirmance of the facts stated in the affidavit is its principal element. In other words, until an affidavit is properly sworn to, no affidavit is made, but a mere statement of the party is made. The Texas courts, in construing statutes of similar purport to the one under discussion here, all of...